News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

New opinion — a major immigration reversal

If you are a citizen charged with a crime, you have a right to a hearing about whether you have to stay locked up until your case is decided.

But if you are not a citizen and the government decides to deport you, a federal statute says you stay locked up — in prison, with people convicted of crimes — until your case is decided. No bond hearing, no individualized assessment of flight risk.

But, at some point, the statute that says you don’t get a hearing is trumped by the constitutional guarantee of due process. And so, in two prior cases, Diop and Leslie, the Third Circuit applied case-specific balancing to rule that the long pre-deportation detentions without hearings in those cases were unconstitutional.

Which brings us to today’s case. Jose Chavez-Alvarez — Mexican citizen, lawful permanent resident, Army veteran, father of two sons who are US citizens — has been detained for deportation since 2012. His detention has been lengthy because his legal challenges to deportation have taken a long time to decide. The government argued that, since he is the one who keeps unsuccessfully challenging his deportation, it is his fault that his detention has gone on so long and he is not entitled to a hearing, and the district court agreed.

Today, the Third Circuit reversed. It held that, on the facts of this case, Chavez-Alvarez’s hearingless detention had become constitutionally impermissible after between 6 months and a year. It found that Chavez-Alvarez’s legal challenges to deportation were made in good faith and the government should have recognized they would take time to resolve. The court therefore ordered a hearing within 10 days to determine whether, on the facts of this case, continued detention was warranted.

Joining Nygaard’s lucid opinion were Rendell and Jordan. Arguing counsel were Valerie Burch of the Shagin Law Group for Chavez-Alvarez, Leon Fresco for the government, and Michael Tan for the ACLU as amicus.

Says Fresco’s faculty webpage:

Leon Fresco currently serves as a Deputy Assistant Attorney General at the Department of Justice, where he is in charge of overseeing the Office of Immigration Litigation. In this role, he supervises over 300 attorneys and oversees all civil immigration litigation, both affirmative and defensive, and is responsible for coordinating national immigration matters before the federal district courts and circuit courts of appeals.

Which underscores both the importance of this case and the likelihood that it’s not over yet.